Defendant
Encore Medical L.P. (“Encore
Medical”)[1] filed a motion to dismiss (the
“Motion to Dismiss”)[2] the claims asserted by
plaintiffs Frank Pettit and Kathy Pettit (the
“Pettits”) under Rule 12(b)(6)[3] for failure to
state a claim. The Motion to Dismiss is denied without
further briefing because it relies upon Encore Medical's
version of the facts. This is impermissible on a motion to
dismiss.

DISCUSSION

The
Motion to Dismiss calls into question the sufficiency of the
Pettits' complaint for product liability (the
“Complaint”).[4] The Complaint alleges that Mr. Pettit
suffered complications, specifically a bacterial infection,
after Encore Medical's device, a shoulder prosthesis, was
surgically implanted in Mr. Pettit.[5] Encore Medical argues that
“nothing about Encore Medical's shoulder device . .
makes infection more likely than any other shoulder device,
” and that “the risk of this infection exists for
any shoulder replacement surgery, not just surgery related to
Encore Medical's device.”[6] Encore Medical's
position is that infection is “a common risk of all
surgeries and a complication unrelated to the medical
device.”[7] While Encore Medical's assertions
could prove to be true, the Pettits have effectively pleaded
otherwise.

For
purposes of a motion to dismiss, well-pleaded factual
allegations are accepted as true and viewed in the light most
favorable to plaintiff as the non-moving party.[8] The Pettits
allege that the design of the shoulder device
“failed to mitigate against but in fact promulgated a
known hazard, ” that is, the bacterial
infection.[9] The Pettits further allege that the
subject device was defectively designed, including use of
improper or defective materials more susceptible to
infection.[10] These allegations are sufficient to
survive a motion to dismiss.

Encore
Medical contends that the breach of warranty and implied
contract claims must be dismissed because the Pettits have
not alleged reliance or privity of contract with Encore
Medical.[11] The Pettits allege an implied contract
of which they were an intended beneficiary.[12]The Complaint
also asserts that the Pettits expected the shoulder device to
be free from dangerous defects or conditions.[13] Encore
Medical questions whether such expectations were a
“basis of the bargain.”[14] But proving that the
relationship between the Pettits and Encore Medical was any
different than alleged, or that the Pettits did not rely on
an expectation of safety from infections, would require fact
analysis outside the procedure of a motion to
dismiss.[15]

Encore
Medical asserts the learned intermediary doctrine, which
holds that a patient relies upon the judgment of an
intermediary physician when a medical product is available
only through the services of the physician.[16] This doctrine
does not support dismissal under Rule 12(b)(6). The Pettits
have raised a question of fact as to whether the product was
defective, as well as the sufficiency of Encore Medical's
warnings to both the end user and any intermediary, such as
the surgeon.[17] Encore Medical correctly asserts that
“the duties of doctors and medical device manufacturers
are ‘separate and independent' from each
other.”[18] In this case, however, that delineation
remains to be clarified and cannot be decided on the Motion
to Dismiss.

In
summary, the Complaint alleges facts that, if true, support
the Pettits' claims. Therefore, this case is not subject
to dismissal under Rule 12(b)(6) for failure to state a
claim.

ORDER

IT IS
HEREBY ORDERED that the Motion to Dismiss[19] is DENIED.
Dated April 16, 2018.

---------

Notes:

[1] Plaintiffs named as the defendants
“DJO Utah, LLC, aka DJO Surgical, dba Encore Medical
and DonJoy Implants and John Doe Defendants I-V.”
Encore Medical contends that no such company exists, that
steps have been taken to correct the company name with
Utah's Department of Commerce, and that Encore Medical is
the proper party in interest. Notice or Removal, Exhibit C,
Amendment to Foreign Registration, docket no. 2-3,
filed April 5, 2018.

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